Amar Sai Vs State of Chhattisgarh

1 . This appeal has been preferred by the accused-appellant under Section 374(2) of the Code of Criminal Procedure Code, 1973 (hereinafter referred to as ‘the Cr.P.C.’), questioning the legality and propriety of the judgment of conviction and order of sentence dated 22.05.2017 passed by the learned Sessions

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Judge, Jashpur, District Jashpur (CG) in Sessions Trial No.16/2017, whereby, the appellant has been convicted for commission of murder of his wife- Smt.Anjana Bai, punishable under Section 302 IPC and sentenced him to rigorous imprisonment for life and fine amount of Rs.2,000/-, in default of payment of fine to further undergo rigorous imprisonment for another 4 months.

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2 . Briefly stated the case of the prosecution is that on 15.11.2016, at about 21.00 hrs. in the farmyard of one Sugal, in village Bakain Tola Kuruwa, Police Station- Sanna, District Jashpur (CG), the appellant with an intention to kill his wife assaulted her with the aid of axe, owing to which, she died on the spot. It is alleged by the prosecution that on the fateful day and time, the appellant Amar Sai has done the unloading of his paddy along with his wife-Anjana Bai, Kailash, Naseem and others and after having the meals, the appellant instructed his wife to give the food to his son namely- Dilu, who was at the relevant point of time at farmyard ( Jungle Khalihan ), but unwillingly and that by murmuring, she was going for providing the meals to her said son and she was followed by her husband and others at the relevant time, owing to anger of his wife’s murmuring, the appellant assaulter her with axe, owing to which, she died on the spot. It is alleged further by the

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prosecution that the appellant himself has lodged the merg intimation while creating a doubt upon one Birsai and Sugal, based upon which crime No.65/2016 was registered under Section 302 IPC. During investigation, inquest (Ex.P/2) of the dead body was conducted on 16/11/2016 and spot map was prepared vide Ex.P/7. The dead body of the deceased was sent for autopsy on 16/11/2016 which was conducted by Dr. Mithlesh Minj (PW-7), who opined vide his report Ex.P/9 that the cause of death was cerebral blood loss due to incised jugular artery of right side of neck and accordingly, it was held to be homicidal in nature. An axe, alleged to have been used for the commission of alleged crime, was seized on 18/11/2016 vide Ex.P/4 based upon disclosure statement (Ex.P/3) of the appellant and according to its query report (Ex.P/10), it was opined by the said Doctor that the alleged injury can be caused by the said weapon. The alleged article, along with the blood stained soil collected from the spot vide Ex.P/5, was sent for its chemical examination, where the blood was found on the alleged axe vide FSL report (Ex.P/21). The appellant was arrested on 18/11/2016 vide Ex.P/6 and after recording the statements of the prosecution witnesses, the appellant was charge-sheeted for the offence punishable under Section 302 IPC and the final report was accordingly, submitted by the Investigating Officer

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before Judicial Magistrate First Class, Bagicha, DistrictJashpur, who in turn, has committed the matter to the Court of learned Sessions Judge on 06/02/2017 for its trial in exercise of the powers enumerated under Section 209 of Cr.P.C. The appellant has denied the charge so framed and claimed to be tried.

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3 . In order to being home the guilt of the accused/appellant, prosecution has examined as many as 9 witnesses and exhibited 23 documents, while none was examined by the appellant in his defence.

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4 . After considering the evidence led by the prosecution and that by considering the FSL report Ex. P/21, it was held by the trial Court that the appellant is the author of the alleged crime. The appellant has, thus, been convicted for the offence punishable under Section 302 IPC and sentenced as mentioned herein above.

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5 . Being aggrieved with the aforesaid judgment of conviction and order of sentence, the appellant has preferred this appeal.

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6 . Learned counsel appearing for the appellant submits that the finding of the trial Court holding the appellant guilty for the commission of alleged crime is apparently contrary to law, in as much as, it did not appreciate the evidence in its proper manner

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and thereby, erred in convicting the appellant for the commission of murder of his wife. While inviting attention towards the FSL report (Ex.P/21), it is submitted that no human blood was found on the allege weapon “axe”, yet the appellant has been convicted under Section 302 IPC. The conviction of the appellant, is therefore, liable to be set aside.

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7 . On the other hand, learned counsel appearing for the respondent/State has supported the impugned judgment of conviction and order of sentence as passed by the trial Court.

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8 . We have heard learned counsel for the parties and perused the entire record.

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9 . From perusal of the record, it appears that autopsy of the dead body of the deceased- Smt. Anjana Bai was conducted by Dr. Mithlesh Minj(PW-7), who has opined vide his report Ex.P/9 that the cause of death was cerebral blood loss due to incised jugular artery of right side of neck, and accordingly, observed her death to be homicidal in nature. After due consideration of the said postmortem report (Ex.P/9), duly supported by Dr. Mithlesh Minj (PW-7), the learned trial Court has rightly arrived at a conclusion that the cause of death of the deceased was homicidal in nature and, we, accordingly, affirm the same.

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10. It is now to be seen as to whether the alleged crime was committed by the appellant or not, as held by the learned trial Court.

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11. Javier Lakda (PW-1), who is familiar with the appellant, stated in his evidence that when he was sleeping in his house, the appellant came in the night at 01:00 A.M. and informed that he has killed his wife but, in his cross examination, he was not found to be stuck on his said version. He is an attesting witness of the seizure memo (Ex.P/4) as well, by which, the alleged weapon “axe” was recovered based upon the disclosure statement of the appellant but, has not supported the same. Nasrulla Siddiqui (PW-2) is the another attesting witness of the memorandum (Ex.P/3) of the appellant as well as the said seizure memo (Ex.P/4) and in his evidence he has supported the prosecution version by saying that the alleged weapon was recovered in his presence from the appellant and has been found to be stuck in his cross-examination with regard to his said version.

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12. Kailash (PW-4) who is acquainted with the appellant has stated in his evidence that in the night at about 12:30 P.M., the appellant came while crying along with one Tukru Ram (PW-9) and informed that someone has killed his wife. It was stated further by him that on the next day morning, i.e. on

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17/11/2016, the said Tukru Ram came to his home and informed that the appellant- Amar Sai has killed his wifeAnjana Bai with the aid of axe. His statement is, however, not supported by said Tukru Ram, who was examined as PW-9, as he turned hostile without supporting the prosecution story. Other prosecution witnesses are formal in nature.

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13. From perusal of the aforesaid testimonies of the prosecution witnesses, it thus, appears that an “axe”, alleged to have been used for the commission of the said crime was seized from the appellant based upon his disclosure statement (Ex.P/3). It, however, appears from a bare perusal of the said seizure memo (Ex.P/4) that though the alleged weapon “axe” was found to be recovered as such, but no blood was, however, found therein. Be that as it may, when the alleged weapon was sent for its chemical examination, the blood was found vide FSL report (Ex.P/21), however, surprisingly enough to observe here that the trial Court, while misreading the said report (Ex.P/21) has observed that the alleged weapon was found to be with human blood and while observing as such, convicted the appellant for the commission of murder of his wife- Anjana Bai under Section 302 IPC. The finding of the trial Court convicting the appellant mainly on the basis of alleged recovery, therefore, cannot be held to be sustainable in the eye of law.

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14. At this juncture, the principles laid down by the Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh and Another, reported in (2019) 7 SCC 781 is to be seen, wherein, it has been held at paragraphs 23 and 24 as under:-

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“ 23 . From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match.”

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24 . In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

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15. In the instant matter, no human blood was found on the alleged weapon “axe” as evident from the FSL report (Ex.P/21), yet the Court below while misinterpreting the same has observed that the human blood has been found on the alleged weapon, while convicting the appellant as such. The entire approach of

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the trial Court, therefore, cannot be appreciated and is liable to be and is hereby set aside.

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16. Consequently, the appeal is allowed and, the impugned judgment of conviction and order of sentence dated 22.05.2017 passed by the Sessions Judge, Jashpur, District Jashpur (CG) in S.T. No.16/2017 is hereby set aside. The appellant is acquitted of the charge framed under Section 302 IPC. He shall be set at liberty forthwith, if his detention is not required in any other case.

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17. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Superintendent of Jail forthwith wherein the appellant is suffering the jail sentence.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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sunita

Amar Sai v. State of Chhattisgarh

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Amar Sai v. State of Chhattisgarh

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